1. ' HABIB-UR-REHMAN SHAIKH, J.--- Through this Constitutional Petition, the Petitioner prays to call the Record and Proceeding of the Rent Case No,147 of 2009 from the Court of IXth Senior Civil Judge/Rent Controller, Karachi East and F.R.A. No,274 of 2010 from the Court of learned Vth Additional District and Sessions Judge Karachi, East. The Petitioner further prays that after hearing the parties set aside the impugned judgment dated 29-11-2011 passed by the learned Appellate Court and the order dated 6-7-2010 passed by the learned trial Court. Hence this Petition.
2. ' Briefly the facts of the case are that the premises bearing No,43 situated at Ground Floor in the building known as "KDA Market" constructed on Plot No,SB-2 in Block No,3, situated at KDA Scheme No,24, Gulshan-e-Iqbal, Karachi was let out by the respondent No,1 "to the petitioner Muhammad Arshad on monthly rent of Rs,19,000/- as per agreement of tenancy dated 4-9-2007. The period of agreement of tenancy has already expired on 1-7-2008 and has not been renewed. According to the respondent No,1, the petitioner has also failed and defaulted in the payment of rent of the demised shop to the respondent No,1 since March, 2008. The respondent No,1 several times asked the petitioner to vacate the demised shop as the same is required for his personal bona fide use but the petitioner had not considered the request of the respondent No,1 and was not willing and ready to vacate and handover vacant physical possession of the demised shop. According to the information and knowledge of the respondent No,1, the petitioner sublet the shop to four persons without consent, knowledge and permission of the respondent No,l. As per Clause No,9 of the Tenancy Agreement, it is mentioned that "That one month prior notice shall be served on either side in case the said premises is desired to be vacated before/after expiry of tenancy period."
3. Applicant also submitted an application to the SHO, Gulshan Police Station, Gulshan-e-Iqbal, Karachi on 28-8-2008. According to the respondent No,1, he is retired from service of PIA and is also aged about more than 63 years as such need the shop for personal bona fide use in good faith as he has no other source of income.
4. ' It is, inter alia contended by the learned counsel for the petitioner that the impugned order passed by the learned Appellate Court as well as the learned trial Court are based on misreading and non-reading and the learned both the Courts below did not apply their judicious mind and passed the impugned orders without appreciating the evidence brought on record. According to the learned counsel for the petitioner, the respondent No,1 has still not proved the allegations that the petitioner has let out the demised shop to four persons as well as the default in payment of monthly rent, though the default may have been committed which cannot be said to be committed deliberately and wilfully. He has further contended that notice dated 28-7-2008 sent by the respondent No,1, which was served upon the petitioner wherein such allegations are not transpiring, hence allegations so made are prima facie afterthought, fabricated and concocted.
5. Learned counsel for the petitioner has further contended that on the point of his personal bona fide requirement of demised shop is not clear that what purpose/business he intends to do in the demised shop. He has further contended that neither the petitioner has committed any default nor the demised shop was sublet by him, in fact the petitioner had deposited the rent amount in the MRC No,180/2008 after refusing to accept the rent then the petitioner sent rent amount through money order in two slips of Rs,10,000/- and Rs,9,000/- in all Rs,19,000/- per month to the respondent No,1 and after its refusal, the petitioner had deposited the same through Bank in the shape of Pay Order in the above mentioned MRC with the Nazir of learned Rent Controller, Karachi East. He has further contended that both the Courts below have not considered the above facts and passed the orders. He prayed that both the orders passed by the two Courts below may be set aside and allowed the petition.
6. ' On the other hand, Mr. Shoa-un-Nabi, learned counsel for the respondent No,1 has contended that both the orders passed by the two courts below are very much correct after giving full opportunity to both the parties by leading their evidence and on merits, the order as well as judgment have been passed. Both the Courts below have correctly taken the view that the petitioner has deposited rent amount before the learned Rent Controller in MRC No,180/2008 from the month of August, 2008 onwards, in fact he has failed to deposit the rent for the month of March, 2008. He has further contended that neither the petitioner sent the monthly rent through Money Order nor through Pay Order of the Bank and the receipts etc are not filed in the Courts below as no any proof of refusal of the same had been submitted by the petitioner simply saying that the respondent No,1 has refused to accept the rent through Money Order or Pay Order, neither any witness has been examined by the respondent No,1 on it, so it appears that he has wilfully committed default in payment of rent as per agreement. Learned counsel for the respondent No,1 has further contended that no any misreading or non-reading has been committed by both the Courts below by announcing their order and the judgment. He has further contended that no any illegality or error has been committed by both the Courts below for pronouncement of their decision. He has further contended that in the petition, this Court has only to decide the legal question and not factually controversy. He prays for dismissal of this petition.
7. ' I have heard the learned counsel for the Parties and perused the record in hand.
8. ' It appears that an oral agreement was made between the parties in the year 2005 and on 4-9- 2007 a Written Agreement was executed between the parties thereafter rent was enhanced from Rs,17,000/- to 19,000/- per month, which was paid by the petitioner to the respondent No,1 regularly up to February, 2008 and since March, 2008, the respondent No,1 claims that the petitioner has committed wilful default in payment of monthly rent when the respondent No,1 demanded to vacate the demised shop as required by him for his personal bona fide use and also sent legal notice to the petitioner for vacating the same. It also reveals from the record that the legal notice has not been denied by the petitioner that he only denied that he has not committed any default and further the petitioner denied that the premises in question is not required to the respondent No,1 for his personal bona fide use. He has further taken a plea that due to mala fide intention and ulterior motive after retirement, the respondent No,1 claimed that the demised shop is required to his personal bona fide use without disclosing the purpose or business and simply saying that the demised shop is required for his personal bona fide use is not sufficient. It also reveals from the record that the petitioner has deposited the amount of rent in MRC No,180/2008 before the learned Rent Controller, Karachi East since August, 2008 and he has failed to prove that monthly rent has been deposited by the petitioner since March, 2008. It further reveals from the record that no any proof regarding payment of rent through Money Order or Pay Order of the Bank has been filed before the learned Rent Controller as documentary evidence to prove his version and it also reveals from the record that no any proof or documentary evidence submitted by the petitioner before the Lower Courts that the petitioner has sent rent amount for the month of June, 2008 through Money Order in his affidavit-in-evidence. The report of the COC of the learned trial Court reveals from the order passed by the learned Rent Controller that the Opponent started depositing rent from the month of August, 2008. On the said month, the opponent deposited Rs,38,000/-, which was rent of two months, thereafter, in September, 2008 he paid Rs,19,000/-, it means that in the month of August, 2008, the opponent also deposited rent of July, 2008, but during the arguments, learned counsel for the petitioner clearly stated that he sent monthly rent of July, 2008 through Money Order to the respondent No,1, which is contrary, while depositing the rent in MRC. It appears that in MRC No,180/2008, the petitioner has not deposited rent of month of June, 2008. If we consider that the petitioner had to deposit monthly rent after expiry of 60 days even though the rent of June, 2008 should be deposited along with arrears, but he has failed to do so. The honourable apex Court always taken a view that the defaulter has committed default in depositing the monthly rent for a single day is sufficient for his ejectment. In the case of Muhammad Asif Khan v. Sheikh Israr (2006 SCM R 1872), wherein it has been held that:--- "Landlord filed ejectment application on the ground of default, which was allowed by the Rent Controller but High Court in exercise of appellate jurisdiction set aside the eviction order and ejectment application was dismissed---Validity---Nothing was available on the record to show that landlord ever refused to accept rent by tender so as to entitle or give any jurisdiction to tenant to send monthly rent through money order or thereafter to change even such mode into deposit of rent in the office of Rent Controller---Deposit of rent in the office of Rent Controller by tenant in absence of any proof of refusal by the landlord, would not be a valid tender in the eyes of law--- Conduct of tenant, in circumstances, would be termed to be contumacious as it would operate as an act of harassm ent to landlord---Rent Controller was justified in passing the order of ejectment against tenant---Judgment of High Court was set aside and tenant was evicted from the premises - Appeal was allowed."
9. ' In the case of Feroze Ahmed v. Zehra Khatoon [1992 CLC 735] wherein it has been held that:- "Deposit of rent with the Rent Controller in a case where landlord has not refused or avoided to accept the rent, would not constitute valid tender of rent. It, is further taken a view that section 15(2)
10. (ii), the tenant who is the defaulter in payment of rent, would be liable eviction notwithstanding subsequent payment of arrears of rent."
11. ' It further reveals that:--- "It will be seen that in absence of written agreement of Tenancy, the Tenant would be deemed to have committed default if he failed to tender the rent within 60 days after it become due, is, 10th of month next following month for which it is due thus appellant committed two defaults in payment of rent one for the month of July, 1986, which was deposited on 20-10-1986, and other for the month of August, 1986, which was deposited on 25-11-1986. Tender of rent in whatever mode it may be, must be within the prescribed time, and once default is established, the tenant must suffer its consequences."
12. In the present case, the petitioner has deposited the amount of rent for the month of July, 2008 in MRC No,180/2008 after depositing A rent of August, 2008, but he has failed to deposit the rent from month of March, 2008 so he committed wilful default and the defaulter is not entitled for any relief.
13. So far as the point of personal bona fide use, the law of the honourable apex Court always taken a view that it is the choice of the landlord to select the premises for his personal use and the landlord need not to disclose all properties, which he had rented out to the other tenants. It is sufficient for the landlord stated before the learned Rent Controller that he required the shop in dispute to run a General Store to earn livelihood and that he wanted to engage one of his sons in the business as laid down in the case of Qamaruddin v. Hakim Mahmood Khan (1988 SCM R 819).
14. In the present case, the landlord/respondent No,1 has in the witness-box, during evidence clearly stated that the demised shop is required to him for his personal bona fide use and these are the factual controversy, which has not been allowed this Court to decide the factual controversy by invoking the Constitutional Jurisdiction.
15. ' In the case of Muhammad Latif v. District Judge, Karachi (South) (2009 YLR 2234), wherein it has been held that:--- "Ss. 15 & 21---Constitution of Pakistan (1973), Art.199--- Constitutional Jurisdiction of High Court--- Scope---Jurisdiction of High Court under Art. 199 of Constitution was not meant to serve the purpose of second appeal against the order of the Rent Controller and Appellate Court---High Court would not be justified to embark upon re-examination of the evidence for the purpose of evaluating the merits of the impugned judgment of the Rent Controller and Appellate Court--- Constitutional Petition was dismissed."
16. In view of the above facts and circumstances of the case, and the case-law of this Court as well as the honourable apex Court, I am of the humble view that in this Constitutional petition this Court has no power to evaluate the evidence of the learned Appellate Court as well as the learned trial Court by invoking the Constitutional Jurisdiction. The learned counsel for the petitioner is unable to succeed for making out a case in favour of the petitioner, thus this Constitutional petition has no merits. The order and the judgment passed by the learned trial Court as well as the learned Appellate Court respectively are upheld wherein directions for vacating the demised shop has been issued. Consequently, this Constitutional Petition is dismissed.